Chapter 28.04 ADMINISTRATIVE PROVISIONS

§ 28.04.010 Right-of-way license.

A right-of-way license shall be required of any person who occupies or desires to construct, install, control or otherwise locate telecommunications facilities in, under, over or across any public way of the city that are not used to provide telecommunications service for hire, sale or resale to the general public or that are sold for the sole purpose of providing a private telecommunications system.

Right-of-Way License Application. Any person that desires a right-of-way license pursuant to this title shall file an application with the city, which shall include the following information:

The identity of the applicant and the persons who exercise working control over the applicant. Publicly traded entities may provide copies of the pertinent portions of their most recent sworn filing(s) with the Federal Securities and Exchange Commission that evidence any working control ownership interests, to comply with this requirement;

A description of the telecommunications services that are or will be offered or provided by the applicant over its telecommunications facilities. Only general, nonproprietary information need be provided;

Whether the applicant intends to provide cable service, open video service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising, in which case the provisions of the city's Ordinance No. 22-84 as amended shall also apply. Only general, nonproprietary information need be provided;

At the time of the application, a network map of existing and proposed facilities to be located within the city, all in sufficient detail to identify:

The location and route requested for applicant's proposed facilities;

The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate; and

To the extent known at the time of application, the applicant shall provide to the city the names of other telecommunications carriers, operators or providers in which there will be an interconnection of telecommunications facilities by the applicant.

Map Format/Media. The director shall have the discretion to prescribe the format and/or media of said maps, consistent with city codes and policies. To the extent compatible with the city's electronic mapping software, the grantee may provide said maps in a computer readable electronic format:

A description of the transmission medium that will be used by the applicant to offer or provide such private telecommunications services;

A description of the city's existing available facilities, such as utility poles, conduits, vaults, etc., that the applicant proposes to use to provide such private telecommunications services. Use of the city's facilities is subject to applicable city regulations, such as pole attachment and the facilities leases provided in Chapter 14.31 RMC;

If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its private telecommunications facilities on existing utility poles along the proposed route;

If applicant is proposing an underground installation in existing ducts or conduits within the public ways, evidence that surplus space is available for locating its private telecommunications facilities in such existing ducts or conduits along the proposed route;

A preliminary construction schedule and completion date;

Information establishing the applicant has obtained all other governmental approvals, permits and facilities leases to construct the facilities;

All deposits or charges and application fees required pursuant to this title. In the event any of the foregoing information required is a business or trade secret and/or proprietary information that the applicant desires to protect against disclosure, then said information shall be provided in a separate envelope marked: "Proprietary information: DO NOT DISCLOSE." The city will exercise good faith efforts to protect the confidentiality of the business or trade secrets or proprietary information that are designated as such.

In the event a public disclosure request is made for information marked as proprietary, and if the city attorney determines that said information may be subject to being disclosed; or if the city determines that the information should be disclosed in connection with its enforcement of any provision of this title, or in the exercise of its police or regulatory powers; then the city shall notify the applicant of the applicant's opportunity to seek a protective order from a court with appropriate jurisdiction.

In the event that a protective order is not obtained within 30 days or, if shorter, the time limitation set forth in state law, then the city may disclose said information. The applicant is obligated to reimburse and indemnify the city for all costs, damages and attorney's fees that may be awarded or assessed by the court for any actions the city took at the request of the applicant.

The city may use and disclose such information only as allowed by law.

Determination by the City. Within 120 days after receiving a complete application under subsection (A) of this section, the director or her or his designee shall issue a written determination granting or denying the right-of-way license in whole or in part. If the right-of-way license is denied, the written determination shall include the reasons for denial. The decision to grant or deny an application for a right-of-way license shall be based upon the following standards:

Whether the applicant's private telecommunications system which will occupy the right-of-way has received all requisite licenses, certificates and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission or any other federal or state agency having jurisdiction;

The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the right-of-way license is granted;

The public interest in minimizing the cost and disruption of construction within the public ways;

The effect, if any, on public health, safety and welfare if the right-of-way license is granted;

The availability of alternate routes and/or locations for the proposed facilities; and

Applicable federal and state telecommunications laws, regulations and policies.

Agreement. No right-of-way license shall be deemed to have been granted hereunder until the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the grantee has been granted the right to occupy and use public ways of the city.

Term of Right-of-Way License. Unless otherwise specified in a right-of-way license, a right-of-way license granted hereunder shall be valid for a term of five years, subject to renewal as provided in this chapter.

Nonexclusive Grant. No right-of-way license granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the city for delivery of telecommunications services or any other purposes.

Rights Granted. No right-of-way license granted under this chapter shall convey any right, title or interest in the public ways, but shall be deemed a right-of-way license only to use and occupy the public ways for the limited purposes and term stated in the right-of-way license. Further, no right-of-way license shall be construed as any warranty of title.

Specified Route. A right-of-way license granted under this chapter shall be limited to a grant of specific public ways and defined portions thereof.

Amendment of Right-of-Way License. A new application shall be required of any person who desires to extend or locate its private telecommunications facilities in public ways of the city which are not included in a right-of-way license previously granted under this title. If ordered by the city to locate or relocate its private telecommunications facilities in public ways not included in a previously granted right-of-way license, the city shall grant an amendment to the right-of-way license without further application.

Renewal of Right-of-Way License. A grantee that desires to renew its right-of-way license under this chapter for an additional term shall, not more than 180 days nor less than 120 days before expiration of the current right-of-way license, file an application with the city for renewal which shall include the following:

The information required pursuant to subsection (A) of this section;

Any information required pursuant to the right-of-way license agreement between the city and the grantee;

All deposits or charges and application fees required pursuant to this title.

Renewal Determination. Within 120 days after receiving a complete application for renewal, the director or her or his designee shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reasons for denial. The decision to grant or deny an application for the renewal of a right-of-way license shall, in addition to the standards set forth in subsection (B) of this section, be based upon the following standards:

The continuing capacity of the public ways to accommodate the applicant's existing facilities;

The applicant's compliance with the requirements of this title and the right-of-way license; and

Applicable federal, state and local telecommunications laws, rules and policies.

Obligation to Cure as a Condition of Renewal. No right-of-way license shall be renewed until any ongoing violations or defaults in the grantee's performance under the right-of-way license, or of the requirements of this title, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city.

(Ord. 11-98; Ord. 19-99; Ord. 30-01)

§ 28.04.020 Master permit.

A master permit shall be required of any service provider who occupies or desires to construct, install, control or otherwise locate telecommunications facilities in, under, over or across any public way of the city, and to provide telecommunications service for hire, sale or resale to the general public; provided, however, that a right-of-way license in accordance with RMC § 28.04.010 may, with the approval of the director, be substituted for a master permit for de minimus uses of public ways made in conjunction with a telecommunications system located entirely upon publicly or privately owned property:

Master Permit Application. Any person that desires a master permit pursuant to this title shall file an application with the city which shall include:

At the time of the application, a network map of existing and proposed facilities to be located within the city, all in sufficient detail to identify:

The location and route requested for applicant's proposed facilities;

The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate; and

An accurate map showing the location of any existing telecommunications facilities in the city that the applicant intends to use or lease to the extent not previously provided;

The area or areas of the city the applicant desires to serve and the initial schedule, if any, for build-out to the master area;

All deposits or charges and application fees required pursuant to this title.

Determination by the City. Within 120 days after receiving a complete application under subsection (A) of this section, the city shall issue a written determination granting or denying the application in whole or in part unless the applicant agrees to a longer period or the master permit sought requires action of the council and such action cannot reasonably be obtained within 120 days. If the application is denied, the city's decision shall be supported by substantial evidence contained in the written determination which shall include the reasons for denial. Prior to granting or denying a franchise under this chapter, the council shall conduct a public hearing and make a decision based upon the standards set forth below. The council shall not approve any master permit hereunder until the next regularly scheduled council meeting following the public hearing. Said standards are:

Whether the applicant's telecommunication system which will occupy the right-of-way has received all requisite licenses, certificates and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission or any other federal or state agency having jurisdiction;

The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the master permit is granted;

The public interest in minimizing the cost and disruption of construction within the public ways;

The effect, if any, on public health, safety and welfare if the master permit is granted;

The availability of alternate routes and/or locations for the proposed facilities; and

Applicable federal and state telecommunications laws, regulations and policies.

Agreement. No master permit shall be deemed to have been granted hereunder until the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the service provider has been granted the right to occupy and use public ways of the city.

Term of Master Permit Grant. Unless otherwise specified in a master permit agreement, a master permit granted hereunder shall be valid for a term of 10 years subject to renewal as provided in this chapter.

Nonexclusive Grant. No master permit granted under this chapter shall confer any exclusive right or privilege to occupy or use the public ways of the city for delivery of telecommunications services or any other purposes.

Rights Granted. No master permit granted under this chapter shall convey any right, title or interest in the public ways, but shall be deemed a master permit only to use and occupy the public ways for the limited purposes and term stated in the master permit. Further, no master permit shall be construed as any warranty of title.

Amendment of Master Permit Grant. Except as otherwise provided within a master permit ordinance, a new master permit application, including appropriate fees, and grant shall be required of any person who desires to extend its master permit territory or to locate its telecommunications facilities in public ways of the city which are not included in a master permit previously granted under this chapter. If ordered by the city to locate or relocate its telecommunications facilities in public ways not included in a previously granted master permit, the city shall grant a master permit amendment without further application.

Renewal of Master Permit. A service provider that desires to renew its master permit under this chapter for an additional term shall, not more than 180 days nor less than 120 days before expiration of the current master permit, file an application with the city for renewal of its master permit which shall include the following:

The information required pursuant to subsection (A) of this section;

Any information required pursuant to the master permit agreement between the city and the grantee;

All deposits or charges and application fees required pursuant to this title.

Renewal Determination. Within 120 days after receiving a complete application for renewal, the city shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the city's decision shall be supported by substantial evidence contained in the determination which shall include the reasons for denial. Prior to granting or denying renewal of a master permit under this chapter, the council shall conduct a public hearing and make a decision based upon the standards set forth in subsection (B) of this section, and the following additional standards:

The continuing capacity of the public ways to accommodate the applicant's existing facilities.

The applicant's compliance with the requirements of this title and the master permit agreement.

Applicable federal, state and local telecommunications laws, rules and policies.

Obligation to Cure as a Condition of Renewal. No master permit shall be renewed until any ongoing violations or defaults in the service provider's performance of the master permit agreement, or of the requirements of this title, have been cured, or a plan detailing the corrective action to be taken by the service provider has been approved by the city.

Expedited Processing of Construction Permits. A master permit may contain a procedure for expedited processing of a construction permit based on reasonable necessity arising from hardship or emergency.

(Ord. 11-98; Ord. 30-01)

§ 28.04.030 Facilities lease.

The council may, in its sole discretion, which is hereby reserved, approve facilities leases for the location of telecommunications facilities and other facilities upon city property, as that term is defined in this title, or upon right-of-way as permitted under RCW 35.21.860(1)(e). Neither this section nor any other provision of this title shall be construed to create an entitlement or vested right in any person or entity of any type.

Lease Application. Any person that desires to solicit the city's approval of a facilities lease for telecommunications facilities pursuant to this chapter shall file a lease application with the city, which shall include the following:

The identity of the applicant;

A description of the telecommunications facilities or other equipment proposed to be located upon city property;

A description of the city property upon which the applicant proposes to locate telecommunications facilities or other equipment;

Demonstration of compliance with RMC Title 23, if applicable;

Preliminary plans and specifications in sufficient detail to identify:

The location(s) of existing telecommunications facilities or other equipment upon the city property, whether publicly or privately owned;

The location and source of electric and other utilities required for the installation and operation of the proposed facilities;

Accurate scale conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment;

An accurate map showing the location of any existing telecommunications facilities in the city that the applicant intends to use or lease;

All deposits or charges and application fees required pursuant to this title.

Determination by the City. Within 120 days after receiving a complete application under subsection (A) of this section, the city shall issue a written determination granting or denying the application in whole or in part. If the lease application is denied, the written determination shall include the reasons for denial. The decision to grant or deny an application for a facilities lease shall be based upon the following standards:

Whether the applicant's facilities which will occupy the city property have received all requisite licenses, certificates, and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission or any other federal or state agency having jurisdiction.

The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the lease is granted.

The public interest in minimizing the cost and disruption of construction upon city property and within the public ways.

The effect, if any, on public health, safety and welfare if the lease requested is approved.

The availability of alternate locations for the proposed facilities.

The potential for radio frequency and other interference with existing public and private telecommunications or other facilities located upon the city property.

The potential for radio frequency and other interference or impacts upon residential, commercial, and other uses located within the vicinity of the city property.

Applicable federal and state telecommunications laws, regulations, and policies.

Agreement. No facilities lease shall be deemed to have been granted hereunder until the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the lessee has been granted the right to occupy and use the city property.

Term of Facilities Lease. Unless otherwise specified in a lease agreement, a facilities lease granted hereunder shall be valid for a term of one year, subject to annual renewal as provided in this chapter.

Nonexclusive Lease. No facilities lease granted under this chapter shall confer any exclusive right, privilege, license, master permit, or franchise to occupy or use city property for delivery of telecommunications services or any other purposes.

Rights Granted. No facilities lease granted under this chapter shall convey any right, title, or interest in the city property, but shall be deemed a facilities lease only to use and occupy the city property for the limited purposes and term stated in the lease agreement. Further, no facilities lease shall be construed as any warranty of title.

Interference with Other Users. No facilities lease shall be granted under this chapter unless it contains a provision which is substantially similar to the following:

The City has previously entered into leases with other tenants for their equipment and antennas facilities. Lessee acknowledges that the City is also leasing the City property for the purposes of transmitting and receiving telecommunications signals from the City property. The City, however, is not in any way responsible or liable for any interference with lessee's use of the City property which may be caused by the use and operation of any other tenant's equipment, even if caused by new technology. In the event that any other tenant's activities interfere with the lessee's use of the City property, and the lessee cannot work out this interference with the other tenants, the lessee may, upon thirty (30) days' notice to the City, terminate this lease and restore the City property to its original condition, reasonable wear and tear excepted. The lessee shall cooperate with all other tenants to identify the causes of and work towards the resolution of any electronic interference problem. In addition, the lessee agrees to eliminate any radio or television interference caused to City-owned facilities or surrounding residences at lessee's own expense and without installation of extra filters on City-owned equipment. Lessee further agrees to accept such interference as may be received from City-operated telecommunications or other facilities located upon the City property subject to this lease.

Ownership and Removal of Improvements. No facilities lease shall be granted under this chapter unless it contains a provision which states that all buildings, landscaping and all other improvements, except telecommunications equipment, shall become the property of the city upon expiration or termination of the lease. In the event that telecommunications facilities or other equipment are left upon city property after expiration or termination of the lease, they shall become the property of the city if not removed by the lessee upon 30 days' written notice from the city.

In the event that the city requires removal of such improvements, such removal shall be accomplished at the sole expense of the lessee and completed within 90 days after receiving notice from the city requiring removal of the improvements, or removal will be accomplished by the city at lessee's expense.

Cancellation of Lease by Lessee.

All facilities leases are contingent upon the prospective lessee obtaining all necessary permits, approvals and licenses for the proposed facilities. In the event that the prospective lessee is unable to obtain all such permits, approvals and licenses, it may cancel its lease, and obtain a pro rata refund of any rents paid, without further obligation by giving 30 days' prior written notice to the city.

In the event that the holder of a facilities lease determines that the city property is unsuitable for its intended purpose, the lessee shall have the right to cancel the lease upon 120 days' written notice to the city. However, no prepaid rent shall be refundable.

Amendment of Facilities Lease. Except as provided within an existing lease agreement, a new lease application and lease agreement shall be required of any telecommunications carrier or other entity that desires to expand, modify or relocate its telecommunications facilities or other equipment located upon city property. If ordered by the city to locate or relocate its telecommunications facilities or other equipment on the city property, the city shall grant a lease amendment without further application.

Renewal Application. A lessee that desires to renew its facilities lease under this chapter shall, not more than 120 days nor less than 60 days before expiration of the current facilities lease, file an application with the city for renewal of its facilities lease which shall include the following:

The information required pursuant to subsection (A) of this section;

Any information required pursuant to the facilities lease agreement between the city and the lessee;

All deposits or charges and application fees required pursuant to this title.

Renewal Determination. Within 60 days after receiving a complete application for renewal, the city shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reasons for denial. The decision to grant or deny an application for the renewal of a facilities lease shall, in addition to the standards set forth in subsection (B) of this section, be based upon the following additional standards:

The continuing capacity of the city property to accommodate the applicant's existing facilities.

The applicant's compliance with the requirements of this title and the lease agreement.

Applicable federal, state and local telecommunications laws, rules and policies.

Obligation to Cure as a Condition of Renewal. No facilities lease shall be renewed until any ongoing violations or defaults in the lessee's performance of the lease agreement, or of the requirements of this title, have been cured, or a plan detailing the corrective action to be taken by the lessee has been approved by the city.

(Ord. 11-98; Ord. 30-01)

§ 28.04.040 Appeal of city determination.

Any person aggrieved by the granting or denying of a right-of-way license, master permit, facility lease, construction permit or the renewals thereof pursuant to this chapter shall have the right to appeal to the council as follows:

All appeals filed pursuant to this section must be filed in writing with the director within 10 working days of the date of the decision appealed from;

All appeals filed pursuant to this section shall specify the error of law or fact, or new evidence which could not have been reasonably available at the time of the director's decision, which shall constitute the basis of the appeal;

Upon receipt of a timely written notice of appeal, the director shall advise the council of the pendency of the appeal and request that a date for considering the appeal be established;

The council shall have the option of directing that the appeal be heard before the hearing examiner who shall forward a recommendation to the council, which shall take final action on the appeal. Referral to the hearing examiner may be made by motion approved by a majority of the councilmembers present at the time of voting;

At the time of notifying the council of the pendency of the appeal, the director shall make his or her recommendation to the council as to whether the appeal should be heard by the hearing examiner or the council. The recommendation shall be based upon relevant considerations including, but not limited to, the time expected to be required to hear the appeal and the need to create a full, formal record;

Regardless of whether the appeal is heard by the council or hearing examiner, all relevant evidence shall be received during the hearing on the appeal;

Unless substantial relevant information is presented which was not considered by the director, such decision shall be accorded substantial weight, but may be reversed or modified by the council if, after considering all of the evidence in light of the applicable goals, policies and provisions of this title, the council determines that a mistake has been made. Where substantial new relevant information which was not considered in the making of the decision appealed from has been presented, the council shall make its decision only upon the basis of the facts presented at the hearing of the appeal, or may elect to remand the matter for reconsideration by the director in light of the additional information;

For all appeals decided pursuant to this section, the city shall provide a record that shall consist of written findings and conclusions and a taped or written transcript;

A service provider adversely affected by the final action of the city denying a master permit, or by an unreasonable failure to act on a master permit according to the procedures established by the city, may commence an action within 30 days of the decision or the expiration of the reconsideration period, whichever is later, with a court having jurisdiction over such action. Any action against the city for denial of a master permit or unreasonable failure to act on a master permit shall be limited to injunctive relief; and

No action to obtain judicial review shall be commenced unless all rights of appeal provided by this section are fully exhausted. The cost of transcription of all records ordered certified by the court for such review shall be borne by the party seeking such review. A copy of each transcript prepared by such party shall be submitted to the city for confirmation of its accuracy.

(Ord. 11-98; Ord. 30-01)